Free Speech Laws, Precedents & Scripture

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The First Amendment

Federal Law

Rebellion and insurrection are not protected "free speech".

18 U.S. Code § 2383 - Rebellion or insurrection

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

18 U.S. Code § 2101 - Riots

(Summary: "intent" to "incite a riot" or “aid and abet any person in inciting or participating in or carrying out a riot” are federal crimes. Federal jurisdiction kicks in when such activity crosses state lines; either when the accused physically crosses state lines, or his communication by mail, phone, etc. does.)

Supreme Court Precedent

Brandenburg v. Ohio, 395 US 444 (1969) "Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Hess v. Indiana, 414 US 105 (1973). A university professor who said “We’ll take the f—ing street again” was acquitted because his speech “amounted to nothing more than advocacy of illegal action at some indefinite future time....since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’””

National Association for the Advancement of Colored People v. Claiborne Hardware Company, 458 US 886 (1982). "Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech."

[ Terminiello v. City of Chicago], 337 U.S. 1 (1949) "The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U.S. 353, 365, 260, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.

"Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262, 193, 159 A.L.R. 1346; Craig v. Harney, 331 U.S. 367, 373, 1253. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.[4]

". . . . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups."

FCC Rulings

FCC Website statement: "The FCC is barred by law from trying to prevent the broadcast of any point of view. The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech. Expressions of views that do not involve a "clear and present danger of serious, substantive evil" come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press and prevents suppression of these expressions by the FCC. According to an FCC opinion on this subject, "the public interest is best served by permitting free expression of views." This principle ensures that the most diverse and opposing opinions will be expressed, even though some may be highly offensive." (But indecency may be limited to certain viewing times, and obscenity must not e allowed.)

Application: a National Review article points out that cable networks are not subject to the FCC. It responds to CNN commentator Max Boot who wants Biden to reinstate the Fairness Doctrine, and reminds us of who brought it to an end and why.

Fixing the Problem

Liberty Guard, aka former Congressman Bob Barr, supports laws that would:

1. Make it illegal to fire an employee for his or her political beliefs.

2. Make it illegal for a business or restaurant to refuse service on the basis of political belief.

3. Make it illegal to place a citizen on the No Fly List without first being convicted of a crime.

4. Make it illegal to be fired from a job, or have service refused, for attending a political rally.

In a January 19, 2021 email, Barr quotes Congressional leaders' latest threats to free speech:

"Sen. RON WYDEN (D-Ore.) suggested this week at that the only way to prevent a repeat of the Capitol riot was endorsement of a full slate of Democratic agenda items. Rep. ALEXANDRIA OCASIO-CORTEZ (D-N.Y.) suggested that "Southern states are not red states, they are suppressed states, which means the only way that our country is going to heal is through the actual liberation of Southern states …" And PAUL KRUGMAN of The New York Times placed blame for the Capitol riots on the entire Republican Party infrastructure: "This Putsch Was Decades In The Making."

"Chuck Schumer called for protesters to be placed on the "No Fly List", without any due process or even having been convicted of a crime:

"We are today-- we are here today because the folks-- the people, the insurrectionists-- who breached the US Capitol, fall under the definition of threats to the homeland and should be immediately added to the TSA No Fly List. Any of those who were inside the Capitol should not be able to fly and should be placed on the No Fly List. We are calling on the authorities-- FBI, TSA, Department of Homeland Security-- to put them on the No Fly List, immediately.

"Dick Durbin is trying to make Trump rallies illegal by classifying them as "domestic terrorism":

"Apparently, they will stop at nothing. According to investigative journalist Paul Sperry the Dems are out to do something far more sinister.

"Perry tweeted: "DEVELOPING: Democrats in both the House and Senate are planning to draft legislation to classify MAGA rallies as "domestic terrorist activity" and require the FBI, DOJ & DHS to take steps to prevent such "domestic terrorism." Sen. Durbin is leading this effort along with Rep Schneider."

"And the Left's allies in the corporate world have fallen in line too:

"Big Business has also played a horrific role in demonizing Trump supporters. The social media platform, Parler, has essentially been put to death over the weekend by Google, Apple and Amazon. The platform has become highly popular among conservatives looking to have free speech. Upon the announcement of President Trump that he was moving his social media efforts to Parler, Big Business went in for the kill.

"Google and Apple suspended their distribution of the Parler app even though it was the number one download app in the Apple App Store. The final and deadly blow was done by Amazon which cancelled their hosting of the platform."


The Smithsonian Institute Magazine reminds us of when Father Coughlin was booted off radio just before World War II for his rants against Jews and sympathy for Nazis. He was incredibly popular: 30 million Americans tuned in to his rants.

But after the Nazi "Kristallnacht", when Nazis burned 267 synagogues, destroyed 7,000 Jewish-owned businesses and arrested 30,000 Jews, and Coughlin defended the Nazis and blamed the Jews, the public complained and radio stations started refusing to air him.

Coughlin had "blamed Jews for their own persecution and claimed in the sermon that the Nazis had actually been lenient. Only a few synagogues were burned, he lied, adding: 'German citizen Jews were not molested officially in the conduct of their business.' And communists, not Jews, were the real targets of the Nazi mobs, according to Coughlin."

He still had enough support to sustain pickets outside radio stations, but when war broke out Nazi sympathy had no support.

The article takes the position that censorship was justified then, and it is today for the same reasons. Coughlin lied about the Jews being the cause of the world's problems, and Trump lied about the election being stolen, if not about everything else he has ever said.

The article ends with a blast against today's "one-sided talk radio and social media echo chambers. These worked, as did Father Coughlin, to undermine tolerance and democracy."


1. Radio especially then made no pretense of giving everyone a voice. Such a pretense would have been absurd since radio bandwidth was very limited. Editorial decisions had to be made continually to keep content that would attract the most listeners. The internet, by contrast, has unlimited space and social media platforms make a pretense of giving all voices, especially accurate voices, a platform.

2. The "section 230" exemption from liability, which social media claim, is from lawsuits over content posted by others for which they are not responsible since they are unable to edit content; but they can and do edit a lot of content. Radio, then, could be sued.

3. The fact that broadcasters edited then, and edited wisely in that instance, which was good, does not make the editing of Facebook, Twitter, Youtube, Google, and Amazon good, when their editing is corrupt. The complaint against them is not that they have power to edit, or that they have a liberal position. It is that they back up their liberal position, not with evidence, but by removing conservative evidence and then claiming the conservatives have no evidence.

4. The limit to information on radio then was mostly space. It was not fear of engaging in debate. The censorship today can't be blamed at all on space. Its only reason is fear of engaging in honest debate on a "level playing field".

5. Then, a very popular saying was "I may disagree with what you say, but I will defend to the death your right to say it." Today, the right to disagree is not a right recognized by the majority of Americans. A growing number of positions are so unacceptable that it becomes irrelevant whether they are true. Today, a growing number of Congressmen are seriously considering penalties for unacceptable speech such as citing evidence of election fraud, or evidence countering official positions on masks, vaccines, etc.

6. The censorship today is by the overwhelming majority of media - newspapers, cable and broadcast TV, and social media, virtually all very liberal, while conservative voices are limited to talk radio and online news which have a much smaller following. It is Goliath stomping on little David. The censorship then was radio, which was as outdistanced then as it is now by newspapers, especially since, then as now, it was used mostly for entertainment, with very little space for opinion or news. Another competitor for news was newsreels which played a few minutes between double features in movie theaters. It was also a time for printing of fliers, which people read seriously then, compared with the average 10 seconds a flier is glanced at today before being tossed. Books were read more seriously then.

The significance of this difference is that then, radio cutting off Coughlin did not leave him with no other way to reach people. Today, with all liberal media conspiring to censor much the same content and the same people, and censorship powered by tanking Google ratings and by depriving platforms of a server, literally half our nation is deprived of mass communication.

7. The censorship then was honest. Reasons were given. Censorship today is dishonest. Shadowbanning is designed to fraudulently keep censorship victims from even knowing they are censored. When censorship is known, the victims are told there is a violation of some policy, which is not identified, or if it is identified, its applicability defies imagination and is not explained. When the public outcry is sufficient, the censorship is called a "mistake".

Application to Trump Impeachment

For perspectives, and quotes from President Trump's speech, see SelfRelianceCentral.